State of Tennessee v. Sherman Dunlap ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FEBRUARY 2000 Session
STATE OF TENNESSEE v. SHERMAN DUNLAP
Appeal as of Right from the Circuit Court for Coffee County
No. 28, 329 John W. Rollins, Judge
No. M1999-00325-CCA-R3-CD - Filed August 4, 2000
Sherman Dunlap appeals his sentence after pleading guilty in the Coffee County Circuit Court to
facilitation of theft over $10,000, a class D felony. The trial court sentenced the appellant, as a
Range II multiple offender, to four years incarceration in the Tennessee Department of
Correction, requiring the appellant to serve one year of his sentence in continuous confinement.
On appeal, the appellant presents the following issue for review: whether the trial court erred in
denying him full probation or, in the alternative, in denying him an opportunity to serve his
sentence in periodic confinement. Following a review of the record and the parties’ briefs, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES, J.
joined, Jerry L. Smith J., filed a concurring opinion.
John E. Herbison, Nashville, Tennessee, and Charles S. Ramsey, Jr., Manchester, Tennessee, for
the appellant, Sherman Dunlap.
Paul G. Summers, Attorney General and Reporter, David H. Findley, Assistant Attorney General,
C. Michael Layne, District Attorney General, and Kenneth J. Shelton, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background.
The appellant, Sherman Dunlap, is the founder and pastor of the Temple
Pentecostal Assembly Church in Nashville. In August 1996, church member Cassandra
McKissack approached the appellant with a forged power of attorney purportedly signed by her
eighty-six year-old uncle to grant Ms. McKissack control of her uncle’s money. Although the
appellant did not see the elderly gentleman sign the papers, he notarized the documents.
Additionally, the appellant drove Ms. McKissack to her uncle’s bank in Manchester, where she
withdrew her uncle’s entire life savings, which totaled $39,892. The appellant then took Ms.
McKissack to another bank, where she opened an account in both her and her uncle’s names.
The appellant’s church received $2,100 from McKissack soon after the transfer of the funds.
The victim’s caretaker noticed the missing money and reported the theft to the
police. Ms. McKissack and the appellant were arrested and charged with theft over $10,000, a
class C felony. Although the appellant denied any knowledge that the notarized documents were
forged, he pled guilty to facilitation of theft of property over $10,000, a class D felony.
The trial court sentenced the appellant, as a Range II multiple offender, to four
years incarceration in the Tennessee Department of Correction. The trial court required the
appellant to serve one year in continuous confinement and placed the appellant on probation for
the remainder of his sentence. In pronouncing sentence, the trial court noted the following
sentencing considerations: incarceration was needed to avoid depreciating the seriousness of the
offense, confinement was necessary to provide effective deterrence, and the appellant abused a
position of public or private trust in commission of the offense. Tenn. Code Ann. §§40-35-
103(1)(B),-114(15)(1997).
II. Analysis.
On appeal, the appellant does not challenge his classification as a Range II
offender or the length of his sentence. The appellant does, however, object to the manner of
service of his sentence. The appellant contends that he should have been granted full probation
or, in the alternative, a sentence of periodic confinement. Appellate review of the manner of
service of a sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). This court considers
the following factors in conducting its de novo review: (1) the evidence, if any, received at the
trial and the sentencing hearing; (2) the pre-sentence 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 statement by the defendant in his own behalf; and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also State v.
Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The trial court must also consider these factors when
imposing a sentence involving confinement. Tenn. Code Ann. § 40-35-103(1). If the record
reveals that the trial court correctly considered sentencing principles and all relevant facts and
circumstances, this court will grant the trial court’s determinations a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d); Ashby, 823 S.W.2d at 169. In any case, the burden is on the
appellant to demonstrate the impropriety of his sentence. Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments.
A. Full Probation
The appellant first contends that he should have been granted full probation. An
appellant is eligible for probation if the sentence actually imposed is eight years or less. Tenn.
Code Ann. § 40-35-303(a)(1997). An appellant who is an especially mitigated or standard
offender convicted of a class C, D, or E felony is presumed to be a favorable candidate for
alternative sentencing. Tenn. Code Ann. § 40-35-102(6)(1997). Because the appellant is a
Range II offender, he did not qualify for the presumption of alternative sentencing. See Tenn.
Code Ann. § 40-35-105(a)(1)(1997). Even without the presumption, the trial court granted the
appellant an alternative sentence of split confinement. See Tenn. Code Ann. § 40-35-306(a)
(1997). Nonetheless, the burden rests with the appellant to show that he is entitled to full
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probation. Tenn. Code Ann. § 40-35-303(b); see State v. Bingham, 910 S.W.2d 448, 455 (Tenn.
Crim. App. 1995). The appellant must demonstrate that probation will “subserve the ends of
justice and the best interest of both the public and the [appellant]” in order to meet this burden.
State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990). In determining the appellant’s
suitability for full probation, the trial court must consider (1) whether a sentence of full
probation would unduly depreciate the seriousness of the offense; (2) the nature and
circumstances of the criminal conduct involved; (3) whether a sentence other than full probation
would provide an effective deterrent to others likely to commit similar crimes; and (4) the
appellant’s potential or lack of potential for rehabilitation. Tenn. Code Ann. §§ 40-35-
210(b)(4),-103(5),-103(1)(B). See also State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App.
1997); Bingham, 910 S.W.2d at 456.
The nature and circumstances of the underlying criminal conduct may alone give
rise to the denial of full probation. Tenn. Code Ann. § 40-35-210(b)(4). See State v. Fletcher,
805 S.W.2d 785, 788-89 (Tenn. Crim. App.1991)(denial of probation may be justified solely
upon the circumstances of the offense when they are of such a nature as to outweigh all other
factors favoring probation). When making confinement decisions based upon the seriousness of
the offense, a court should determine if "the circumstances of the offense as committed [are]
especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or
exaggerated degree.” See State v. Zeolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996); see
also Bingham, 910 S.W.2d at 454 (citing State v. Hartley, 818 S.W.2d 370, 374-375 (Tenn.
Crim. App.1991)). In this case, the theft underlying the appellant’s conviction deprived an
elderly gentleman of his entire life savings. Cf. State v. Bilbrey, 816 S.W.2d 71, 77 (Tenn. Crim.
App.1991)(in considering the "circumstances of the offenses," the trial court properly
acknowledged that the defendant's "total theft nearly destroyed the victim's business").
Moreover, in facilitating the theft by notarizing the forged documents, the appellant abused a
position of public trust. Tenn. Code Ann. § 40-35-114(15). See also Tenn. Code Ann. § 40-35-
210(b)(5). Finally, even assuming that “the circumstances of this offense, as reprehensible as
they are . . . are not enough to support a denial of probation,” additional factors support the denial
of full probation. State v. McKissack, No. 01C01-9711-CC-00543, 1999 WL 135048, at *3
(Tenn.Crim.App. at Nashville, March 15,1999).
In denying the appellant full probation, the trial court, in a conclusory statement,
found that confinement was necessary to provide effective deterrence. To deny full probation on
the basis of deterrence, “there must be some evidence contained in the record that the sentence
imposed will have a deterrent effect within the jurisdiction.” Bingham, 910 S.W.2d at 455; see
also State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). Mere conclusive
statements regarding deterrence are generally not sufficient to support a trial court’s
consideration of this factor; there must be specific findings of fact on the record. Bingham, 910
S.W.2d at 455. However, this court has previously stated that “the punishment of certain
offenses is particularly suited to provide an effective deterrent to others likely to commit similar
offenses.” State v. Lutry, 938 S.W.2d 431, 435 (Tenn. Crim. App. 1996); see also Tenn. Code
Ann. § 40-35-103(1)(B). In other words, with respect to certain offenses, the State need not
adduce extrinsic evidence in order to establish the deterrent value of punishment. See Lutry, 938
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S.W.2d at 435, (citing State v. Millsaps,920 S.W.2d 267 (Tenn. Crim. App. 1995)). An example
of such an offense is fraud or forgery. Id. (citing State v. Willoughby, No. 03C01-9305-CR-
00154, 1994 WL 247110 (Tenn. Crim. App. at Knoxville, June 9, 1994). Although the appellant
in this case pled guilty to facilitation of a felony, the felony involved a fraud or forgery.
Accordingly, the trial court correctly considered deterrence in refusing to grant the appellant full
probation.
Moreover, “measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the [appellant],” demonstrating his poor potential for
rehabilitation. See Tenn. Code Ann. §§ 40-35-103(1)(C), -103(5). The appellant has a history of
criminal conduct consisting of four convictions of passing worthless checks, one conviction of
possession of marijuana, and one conviction of facilitating prostitution. The appellant received
probation for three of his prior criminal convictions. Yet, the appellant is once again in court
because of his criminal behavior. The appellant has clearly demonstrated his poor potential for
rehabilitation.
Based upon the circumstances of the offense, the deterrent effect of incarceration,
and the appellant’s lack of potential for rehabilitation, we conclude that the trial court properly
denied the appellant full probation.
B. Alternative Sentencing Options
The appellant alternatively argues that he should receive periodic confinement,
instead of continuous confinement, in order to provide for his family. A period of confinement
along with a period of probation may be justified when the circumstances of the case fall between
complete denial of probation and a full grant of probation. See State v. Necessary, No 02C01-
9307-CR-00131, 1994 WL 413482, at *4 (Tenn. Crim. App. at Jackson, August 10, 1994).
Again, the trial court in this case properly considered the circumstances of the appellant’s
offense, including his abuse of a position of public trust, the deterrent effect of incarceration, the
appellant’s previous criminal record, and his lack of potential for rehabilitation, in selecting the
manner of service of the appellant’s sentence. Thus, notwithstanding the appellant’s strong
family ties and his family’s need for his financial support, we cannot conclude that the trial court
abused its discretion in requiring the appellant to serve one year of his four-year sentence in
continuous confinement.
III. Conclusion.
Because the appellant has failed to demonstrate to this court the impropriety of the
manner of service of his sentence, the judgment of the trial court is affirmed.
Norma McGee Ogle, Judge
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