State v. Mark Cash ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1998 SESSION
September 22, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9712-CR-00579
Appellee, )
) Putnam County
v. )
) Honorable Leon Burns, Jr., Judge
MARK A. CASH, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Lionel R. Barrett, Jr. John Knox Walkup
Washington Square Two - Suite 418 Attorney General & Reporter
222 Second Avenue, North 425 Fifth Avenue, North
Nashville, TN 37201 Nashville, TN 37243-0493
Timothy Behan
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
William Edward Gibson
District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501-3424
Shawn C. Fry
Assistant District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501-3424
OPINION FILED: ____________________________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION
The defendant, Mark A. Cash, entered guilty pleas to nine counts of incest. An
aggravated rape count was dismissed. As part of the plea agreement, the defendant
agreed for the trial court to run counts two through five concurrently and counts six through
ten concurrently, but consecutively to counts two through five. The trial court imposed
sentences of five years for each conviction for an effective sentence of ten years.
In this appeal of right, the defendant presents two issues: (1) whether the trial court
erred in not granting some form of alternative sentencing, and (2) whether the trial court
erred in not imposing a sentence of six to eight years. We affirm the judgment of the trial
court.
SENTENCING HEARING
The victim, S.R.,1 testified her stepfather, the defendant, had sex with her in August,
1994. The victim testified she had returned from vacation bible school in the evening. Her
mother was working at O’Charlie’s at the time of this occurrence. The defendant had put
the victim’s two sisters, ages 6 and 10, to bed.
The defendant returned to the living room, where the victim was watching TV. The
defendant removed his clothes and told the victim to take hers off. The victim stated, “He
told me I had to, so I did.” The victim testified they had sex on the living room floor.
The victim was unsure if the defendant ejaculated on this occasion, but he had done
so before on other occasions. Overall, the victim testified she and her stepfather had sex
about ten or eleven times, and denied she told the Department of Human Services (DHS)
they had sex only three times.
1
In order to protect the identity of minor victims of sexual abuse, it is the policy of this
Court to refer to the victims by their initials. See State v. Schimpf, 782 S.W.2d 186, 188,
n.1 (Tenn. Crim. App. 1989).
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Mrs. Cindy Cash, mother of S.R., testified she married the defendant in October,
1985 and they had two children. Mrs. Cash testified that her daughter was slow and had
a learning disability. S.R. attended special education classes. Mrs. Cash testified her
husband had an alcohol and drug abuse problem and four prior DUI convictions. She had
also charged him with assault on numerous occasions. The defendant failed to comply
with his previous conditions of probation. Since the wife and defendant’s separation in
May, 1995, the defendant has had little contact with his two daughters.
Tim Cook, Progressive Sentencing, testified he supervised the defendant while on
probation. The defendant had been convicted of DUI and driving on a revoked license. Mr.
Cook testified the defendant reported as required, but failed to pay his court costs, for
which a violation warrant was issued. The defendant failed to pay any costs from April,
1996 to the date of the sentencing hearing, June, 1997. Mr. Cook testified he could not
confirm or deny whether the defendant had completed 200 hours of community service as
a condition of probation.
Jay Colton, employee of the Department of Correction, testified he was the
defendant’s supervisor in 1988, when the defendant was placed on pretrial diversion.
When asked how the defendant did on pretrial diversion, Mr. Colton stated, “He didn’t do
very well at all.” Mr. Colton testified his biggest problem with the defendant was the
defendant’s laziness. The defendant would not work, report, or do his community service
until pushed to do so. The defendant’s pretrial diversion was terminated due to violations.
Mr. Colton was not aware of any alcohol problems the defendant had until the sentencing
hearing.
At the sentencing hearing, the defendant testified he was 35 years old and was
presently living in Nashville. After dropping out of high school in the eleventh grade, the
defendant obtained a GED. Also, the defendant received an honorable discharge from the
U.S. Coast Guard. At the age of 13, the defendant’s parents divorced and he was raised
by his mother in Atlanta, Georgia.
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As to the use of alcohol, the defendant testified alcoholism runs heavy in his family
and “it’s just been very devastating.” Prior to these offenses, the defendant was a part-time
entertainer in country music and worked in various restaurants and night clubs. The
defendant was employed up until two weeks before the sentencing hearing. After being
arrested on these charges, the defendant entered an alcohol treatment program at
Cumberland Heights in Nashville. After four days, the defendant was flown to Father
Martin’s Ashley Treatment Center in Baltimore, Maryland. The defendant underwent a 33-
day intensive treatment in a program similar to the Betty Ford Treatment Center in
California. In response to a question about the center in Baltimore, the defendant stated:
They specialize in people that just can’t stay sober. They
specialize—I could always stay sober maybe 90 days, four
months, and then would relapse and continue drinking. And
they, they specialize in finding out why that happens and went
into areas of my life that have not been dealt with before.
Although not a defense, the defendant testified that alcohol and drugs were
responsible for his situation with his stepdaughter. The defendant testified he was
attending Alcoholics Anonymous meetings once a day, sometimes twice a day. He further
testified he wanted to restore his relationship with his family and expressed remorse to the
victim and her family for any pain he caused.
Tommy Cash, father of the defendant, testified that he is a professional entertainer
and licensed realtor. Mr. Cash testified he became aware of his son’s drinking problem
when his son moved to Atlanta with his mother, after their divorce. Mr. Cash described his
son’s abuse of alcohol as “the worst I’ve ever seen.” Mr. Cash advised the trial court he
has been a recovering alcoholic for the past ten years. Also, Mr. Cash described Father
Martin’s Treatment Center as one of the best in the nation. Mr. Cash testified his son
stayed sober and clean for almost a year after treatment. Although his son did relapse,
he bounced back. Mr. Cash advised the trial court he would work with his son regardless
of the outcome.
Mr. Johnny Moore, a family friend, testified that in his opinion, if the defendant was
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given the opportunity, he could really shine in the music world. Also, Mr. Moore was aware
of the defendant’s many DUI convictions.
The presentence report, a letter from Father Martin’s Ashley Center, an evaluation
of the victim by the DHS, and a psychological report of Vanderbilt University on the victim
were submitted to the trial court for consideration. Based upon this evidence, the trial court
imposed sentences of five years for each offense and, as part of the plea agreement, ran
five counts consecutively and denied any alternative relief.
MANNER OF SERVICE
When a defendant complains of the imposition of his or her sentence, we must
conduct a de novo review with a presumption of correctness. Tenn. Code Ann. 40-35-
401(d). Therefore, the burden of showing that the sentence is improper is upon the
appealing party. Id. The presumption that determinations made by the trial court are
correct is conditioned upon the 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 (Tenn. 1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App.
1994).
If appellate review reflects the trial court properly considered all relevant facts and
its findings of fact are adequately supported by the record, this Court must affirm the
sentence “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an
appropriate sentence, the trial court must consider: (1) the evidence, if any, received at
the guilty plea and the 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 involved; (5) evidence and information offered by the parties on
enhancement and mitigating factors; (6) any statements the defendant wishes to make in
the defendant’s behalf about the sentencing; and (7) the potential for rehabilitation and
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treatment. Tenn. Code Ann. § 40-35-210(a) and (b); Tenn. Code Ann. § 40-35-103(5);
State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
The record in this case demonstrates the trial court made adequate findings of fact.
We, therefore, conduct a review of these facts with a presumption of correctness. At the
sentencing hearing, the trial court found the defendant had a history of criminal convictions
and a history of criminal behavior. These convictions consisted of four driving under the
influence of alcohol and several assaults on his wife. Tenn. Code Ann. § 40-35-114(1).
The trial court considered this factor to be important. In addition, the trial court found that
the defendant abused the position of a private trust. Tenn. Code. Ann. § 40-35-114(15).
The trial court stated, “I can’t think of any other position that would be more appropriate for
a position of private trust where a mother leaves the child or children with the step-father
as she goes and earns a living for the family. So I think that is certainly an important factor,
and it was abused in this case.” Also, the trial court gave limited weight to the
enhancement factors of vulnerability and gratification, due to the number of offenses.
Tenn. Code Ann. § 40-35-114(4) and (7).
In assessing the appropriate sentences, the trial court also considered the mitigating
factors submitted by the defendant. Tenn. Code Ann. § 40-35-113; Tenn. Code Ann. § 40-
35-210. As to the mitigating factor that the defendant’s conduct neither caused nor
threatened bodily injury, the trial court gave little weight to this factor. As to the mitigating
factor of previous counseling, the trial court was not impressed. The trial court found that
the defendant had failed to respond to counseling for his multiple DUI convictions, which
was during the commission of many of these offenses. In addition, the trial court found
that remorse should be given little weight. Therefore, the trial court assessed sentences
of five years for each offense as the appropriate sentence. We affirm the trial court’s
judgment as to the period of confinement for each offense.
DENIAL OF ALTERNATIVE SENTENCE
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The defendant argues that community corrections with the condition of alcohol
treatment would be the most appropriate sentence. In addition, the defendant submits he
was eligible for probation for each of these offenses, including the possibility of split
confinement. The State contends the defendant is not worthy of any alternative sentence.
In its ruling, the trial court held:
The Court does not believe that it would be appropriate for a
Community Corrections sentence to be given. That being an
offense against persons, Community Corrections would be
inappropriate unless there is some showing that he fits some
special need, and under the circumstances I see none and
could not grant that.
Since the defendant entered a plea of guilty to incest, a Class C felony, ordinarily
the defendant would be presumed to be a favorable candidate for probation or an
alternative sentence, in the absence of evidence to the contrary. Tenn. Code. Ann. § 40-
35-102(6). However, the record of the sentencing hearing establishes the defendant, at
the entry of the guilty pleas, would receive some consecutive sentences, to be determined
by the trial court. Since the range of punishment for Class C felonies, Range I, is three to
six years, there is a legitimate question if the defendant would be eligible for probation for
a total sentence of ten years. The defendant’s application for community corrections was
the defendant’s only viable option. Thus, the defendant has the burden of establishing that
he is a favorable candidate for alternative relief.
Those defendants, who are convicted of violent felony offenses and those convicted
of felony offenses involving offenses against the person, are normally statutorily excluded
from community corrections sentences. State v. Braden, 867 S.W.2d 750 (Tenn. Crim.
App.), per. app. denied (Tenn. 1993); State v. Birge, 792 S.W.2d 723 (Tenn. Crim. App.),
per. app. denied (Tenn. 1990). Since violent offenders are not statutorily eligible for
community corrections, Section (c) of Tenn. Code Ann. § 40-36-106, however, provides
as follows:
Felony offenders not otherwise eligible under subsection (a),
and who would be usually considered unfit for probation due
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to histories of chronic alcohol, drug abuse, or mental health
problems, but whose special needs are treatable and could be
served best in the community rather than in a correctional
institution, may be considered eligible for punishment in the
community under the provisions of this chapter.
A trial court, in its determination for placing a defendant in the community
corrections program under Section (c), must consider: (1) the offender has a history of
chronic alcohol, drug abuse, or mental health problems; (2) these factors were reasonably
related to and contributed to the offender’s criminal conduct; (3) the identifiable special
need (or needs) are treatable; and (4) the treatment of the special need could be served
best in the community rather than in a correctional institution. State v. Boston, 938 S.W.2d
435, 439 (Tenn. Crim. App. 1996).
Although the trial court did not specifically address this criteria in denying community
corrections, the trial court did articulate in the record its reasons for denying community
corrections. Our analysis of the record supports the trial court’s findings. As the trial court
pointed out, a charge of aggravated rape, alleged to have occurred in 1990 involving the
same victim, was dismissed. The trial court found the number of acts of incest between
February, 1992 and July, 1995 was quite extensive. As a result of four DUI convictions,
the defendant had been given many opportunities to seek and benefit from alcohol
treatment. Also, the defendant committed many of these offenses during periods of
probation. The defendant was given opportunities to be on probation (including pretrial
diversion) and failed to comply with the conditions of probation. We affirm the trial court’s
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judgment.
_____________________________________
L. T. LAFFERTY, SPECIAL JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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