State v. Smith ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION
January 8, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9701-CR-00014
Appellee, * HAMILTON COUNTY
VS. * Hon. Gary D. Gerbitz, Judge
JOE HENRY SMITH, * (Sentencing)
Appellant. *
For Appellant: For Appellee:
Ardena J. Garth John Knox Walkup
District Public Defender Attorney General and Reporter
Eleventh Judicial District
Donna Robinson Miller Clinton J. Morgan
Assistant District Public Defender Counsel for the State
Suite 300, 701 Cherry Street 450 James Robertson Parkway
Chattanooga, TN 37402 Nashville, TN 37243-0493
(on appeal)
Barry Steelman
Cynthia Lecroy-Schemel Assistant District Attorney General
Assistant District Public Defender Suite 300, 600 Market Street
Suite 300, 701 Cherry Street Chattanooga, TN 37402
Chattanooga, TN 37402
(at trial)
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Joe Henry Smith, was indicted for aggravated robbery.
He then entered into a plea agreement whereby he pled guilty to simple robbery and
accepted a Range I, six-year sentence. The trial court denied probation. In this
appeal of right, the defendant complains that the trial court should have granted
probation or an alternative sentence.
At about 1:00 A.M. on September 18, 1995, the victim, William Luther,
who was an employee of Steak-Out, made a delivery to a residence in Chattanooga.
The defendant, who appeared to be armed with a sawed-off shotgun, and another
male robbed the victim of approximately $60.00 in cash, food, and the contents of
his wallet.
At the sentencing hearing, the defendant, who had been jailed for
approximately nine months, testified that he planned to return to the residence of his
father, if released, and go to work. The defendant acknowledged that the robbery
was "stupid" and claimed that it was the result of being with "the wrong crowd and
[at] the wrong place at the wrong time." The defendant denied having a shotgun but
conceded that he had a pipe and held it as if it was a shotgun. The defendant
testified that he had already violated his probation on a prior theft conviction by the
time this crime had occurred.
The trial court first determined that the defendant had a prior criminal
history which included prior theft offenses and the use of illegal drugs. It determined
that the defendant was on either probation or a suspended sentence when the
robbery occurred and had been untruthful to police when first questioned. Based
upon those findings, the trial court determined that confinement in prison was
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necessary.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption 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, 169 (Tenn. 1991). The
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
The purpose of the Community Corrections Act of 1985 was to provide
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an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. §
40-36-103. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets
the minimum requirements of the Community Corrections Act of 1985, however,
does not mean that he is entitled to be sentenced under the act as a matter of law
or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following
offenders are eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
The defendant, twenty-two years of age, is single. He attended
Ooltewah High School until the twelfth grade when he was suspended for fighting.
The defendant has two daughters, ages six and five, through a relationship with
Mona Davis and, according to the presentence report, does not provide child
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support. While possessing "the ability to attain and maintain gainful employment,"
the defendant has a sporadic work history. Working as a laborer, his jobs with three
different employers from 1992 through 1995 were terminated by a discharge,
abandonment, and resignation. While in excellent physical and mental health, the
defendant conceded that he was smoking "weed" and using alcohol at the time of
the robbery.
The defendant's record includes a 1996 conviction for theft of less
than $500.00 and an eleven-month and twenty-nine-day sentence which resulted in
the revocation of probation. Prior to that, the defendant had convictions for
shoplifting, assault, driving on a revoked license, and criminal impersonation. His
juvenile record includes more than one theft and an assault.
The defendant's father, Joe Smith, Sr., is a heavy equipment operator
and supervisor with Ridge Brothers Construction in Chattanooga. He testified that
he was willing to have his son return to his residence, support random drug screens,
and find the defendant regular employment as a laborer.
While the defendant has made a compelling argument for probation, a
sentence of split confinement, or placement in Community Corrections, a
determination made by the trial court after proper consideration of the applicable law
and facts, is always entitled to a presumption of correctness. Community
Corrections is designed for those who are convicted of non-violent felony offenses.
Robbery qualifies as a violent offense and, therefore, precludes the defendant from
consideration. State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989); State
v. Vernita Cox, No. 02C01-9605-CR-00174, slip op. at 3 (Tenn. Crim. App., at
Jackson, July 7, 1997).
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Moreover, the defendant's prior criminal history and his failure to
comply with the terms of a conditional release from incarceration on an earlier
sentence, support the denial of either immediate probation or a sentence of split
confinement. See Tenn. Code Ann. §§ 40-35-102(3)(B) and -103(1)(C). The
primary purpose of the Criminal Sentencing Reform Act of 1989 is to provide the
punishment most "justly deserved in relation to the seriousness of the offense...."
Tenn. Code Ann. § 45-35-102(1). Sentencing requires an individualized, case-by-
case approach. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). That method of
analysis necessarily embodies the exercise of discretion at the trial court level,
where the trial judge sees and hears the witnesses firsthand. See State v. Fletcher,
805 S.W.2d 785 (Tenn. Crim. App. 1991). Appellate courts "are always reluctant to
interfere with [the] traditional discretionary powers [of the trial judges]." Ashby, 823
S.W.2d at 171. That is the case here. The trial court listed valid reasons for the
denial of an alternative.
For all of these reasons, we affirm the judgment of the trial court.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
David H. Welles, Judge
_____________________________
Jerry L. Smith, Judge
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