State v. Lovingood ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
DECEMB ER SESSION, 1997 February 9, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9612-CC-00446
)
Appellee, ) BLOUNT COUNTY
) HON. D. KELLY THOMAS, JR., JUDGE
V. ) GREENE COUNTY
) HON. JAMES E. BECKNER, JUDGE
JAMES ROBERT LOVINGOOD, )
) (Theft under $500.00; Theft over $500.00)
Appe llant. ) (Cases Cons olidated for Appe al)
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER JOHN KNOX WALKUP
District Public Defe nder Attorney General & Reporter
419 H igh Stree t
Maryville, TN 37804 PETER M. COUGHLAN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
MICHAEL L. FLYNN
District Attorney General for Blount Co.
EDW ARD P . BAILEY , JR.
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
GREG W. EICH ELM AN
District Attorney General for Greene Co.
ERIC D. CHRISTIANSEN
Assistant District Attorney General
NationsBank Building
Greeneville, TN 37743
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defen dant, Jam es Rob ert Loving ood, pled guilty to twelve counts of
theft of vario us grades and one count of alteration of a manufacturer’s serial
number in the Circuit Court of Blount County. By agreement, he was to receive
a ten (10) year sentence with the manner of service to be determined by the trial
court. The trial court ordered Defen dant to serve the sentence in the Department
of Correc tion. Defendant also pled guilty to one count of theft over ten thousand
dollars ($10,000.00) in the G reene Coun ty Circu it Court. The agreed sentence
in that case was ten (10) years to run concurrent with the sentence for the Blount
Coun ty conviction s. The S tate and the Defendant had previously agreed that the
Blount County trial court’s determination as to the manner of service of
Defenda nt’s sente nce w ould a lso de termin e the m anne r of serv ice of Defen dant’s
sentence in Greene C ounty. Therefore, the trial court in Greene County ordered
the ten (10) year sentence for the theft to be served in the Department of
Correction. The De fendant app ealed the sen tencing orders of both courts as of
right regarding th e man ner of se rvice of his se ntence s, and his motion to
conso lidate the app eals wa s grante d by this co urt. The D efendant argues that
the trial cou rts erre d in denying him placement into the Community Corrections
Program and re quiring him to serve his sentence in the Department of Correction.
We affirm the judgments of the trial courts.
When an accused challenges the length, range or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are correct.
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Tenn. Code A nn. § 40-35-4 01(d). This pre sumption is “c onditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circum stances.” State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
In conducting a de novo review of a senten ce, this cou rt must cons ider:
(a) the evidence, if any, received at trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and argum ents as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the defendant made on his own be half; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. Tenn . Code Ann. § 40-35-102, -103, and
-210; see State v. S mith, 735 S.W .2d 859 , 863 (T enn. C rim. App . 1987).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law, and
made findings of fact adequately supported by the record, then we may not
modify the sentence even if we wou ld have p referred a different res ult. State v.
Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
At the se ntenc ing he aring in Blount Cou nty, the De fenda nt testifie d on h is
own behalf. He was thirty-seven (37) years old and lived in East Knoxville. At
that time, Defend ant was do ing contract wo rk for a real estate firm in Alco a. In
1983, Defe ndan t started using the na rcotic Dilaudid . To sup port his dru g habit,
Defendant comm itted many crim es, including burg lary, possession of burglary
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tools and writing worthless checks, for which he received a sentence of ten (10)
years in Blount County. Defendant served one (1) year in jail, then served the
remainder of the sentence on probation. He admitted that during his proba tionary
period he used Dilaudid and had to go th rough drug tre atme nt at Pe ninsu la
Lighthouse. Defendant moved to Chattanooga in 1989, but when he returned to
the Blount County area in 1994 he again became involved with Dilaudid. His
drug habit becam e so expen sive that he returned to a group of individuals he
knew were transporting stolen merchandise to Greene County. Defen dant’s role
in the crime ring was to steal and to transport stolen farm equipment from Knox
Coun ty to Greene County, for which he rec eived a cash com miss ion. Th is
continued to occur over a pe riod of three (3) to four (4 ) month s. As a res ult,
Defendant also had the c harges pe nding in Gre ene County. W hile there were
numerous charg es ag ainst D efend ant, he adm itted tha t there w ere m ore items
stolen than he had been charged with and these stolen items had not been
recovered by the police.
The Defendant a gain went into drug rehabilitation treatment in October
1995. He was continuing to attend an outpatient program for intensive group
therapy as well as Alcoholics Anonymous each week. Wh ile he was not earning
much mon ey, De fenda nt state d that h e wou ld be w illing to make restitution
payments. At the time of the sentencing hearing, Defendant was enrolled in a
real estate sc hool an d was p lanning to obtain his real esta te license . The
Defendant submitted various letters of recommendation on his behalf, from
various friends and em ployers. In add ition, his curren t emp loyer te stified in
suppo rt of the De fendan t.
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The Com mun ity Corre ctions Act allows ce rtain eligible o ffenders to
particip ate in community-based alternatives to incarceration. Tenn. Code Ann.
§ 40-36-1 03. A de fendan t must first be a suitable can didate for alternative
sentencing. If so, a defendant is then eligib le for participa tion in a co mm unity
corrections program if he also satisfies several minimum eligibility criteria set
forth at Tenne ssee Co de Anno tated section 40 -36-106(a).
Howeve r, even though an offender meets the requirements of eligibility, the
Act does not provide that the offen der is auto matica lly entitled to su ch relief.
State v. Grandbe rry, 803 S.W .2d 706 , 707 (T enn. C rim. App . 1990); State v.
Taylor, 744 S.W .2d 919 , 922 (T enn. C rim. App . 1987). R ather, the statute
provides that the criteria shall be interpreted as a minimum standard to guide a
trial court’s determination of whether tha t offender is eligible for co mm unity
corrections. Te nn. Code Ann. § 40-3 6-106(d).
Based upon the evide nce and the record, the trial court found that
Defendant was eligible for the Community Corrections program for his ten (10)
year sentence, but determined that he was not a suitable candidate. The trial
court base d its de cision that Defendant was “to be given first priority regarding
[a] sentence involving incarceration because [Defendant] clearly ha[s] a criminal
history that shows a disregard for the laws and morals of society and failures of
past effort at rehabilitation.” The trial court found that confinement was
necessa ry to avoid depre ciating the seriousness of the offense and was
particularly s uited to pro vide an e ffective dete rrent.
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Furthermore, the trial court found that Community Corrections was not
appropriate due to the “sheer m agnitud e of the nu mber o f cases a nd the
seriousness of the cases involved when [D efenda nt was] 24 and invo lved now .”
Trial court noted tha t there were over twenty (20) serious felonies which involved
two (2) different counties at the time Defendant was twenty-four (24) years old,
and now there are ten (10) seriou s felon ies pe nding in Blount, Knox, and Greene
counties. When speaking to the numerosity of the charges, the trial court noted
that
You know , it’s not jus t break ing the law. It’s doing it to a degree that
spans county lines, involves thousan ds and thou sands of do llars
worth of mone y. And I don’t think the considerations about the
Com munity Corrections Program and the likelihood of your
rehabilitation, your attitude about how you went back into drug
usage, weigh that agains t the danger o f your comm itting more
crimes and th e ma gnitude of your criminal involvement over the
years, it just doesn’t weigh ou t in your favor. I’m sor ry, but th is is a
record that you’ve amas sed an d this is wh at you’ve d one. A nd I
think the only ap propriate senten ce is the te n-year se ntence as
agreed and serving that sentence in the Department of Corrections.
Defendant argues that since the trial court found the Defendant to be
eligible for placem ent in the C omm unity Cor rections p rogram , then it erred in
relying on the she er num ber of De fendan t’s crimes and his p oor am enability to
rehabilitation in denying C omm unity C orrect ions. D efend ant infe rs that if h e is
eligible for Community Corrections, then he is guaranteed to be placed in that
program. In State v. Cummings, 868 S.W.2d 661, 668 (Tenn. Crim. App . 1992),
the court held that “mere eligibility, of course, does not end the inquiry” in
determining whether Com munity Co rrections is an app ropriate senten ce for a
defend ant. Rather, the court is obliged to consider the defendant’s criminal
history and his potential for rehabilitation or treatm ent. Id., citing State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). Recently, a panel of this court, in a de novo
review of an alternative sentencing issue, was guided by the a ppella nt’s
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considerab le potential for rehabilitation, unblemished criminal record and remorse
for unlawful conduct in determining whether the appellant was a p roper ca ndidate
for the Com munity C orrection s progra m. State v. Millsaps, 920 S.W.2d 267, 272
(Tenn . Crim. A pp. 199 5).
Upon our de novo review, we conclude that the trial court was correct in its
findings and that the Defendant should serve a ten (10) year sentence in the
Department of Correction. While eligible for Community Corrections under the
terms of Tennessee Code Annotated section 40-36-106 , the eligibility criteria are
the minimum stand ards. T he trial c ourt pr operly cons idered the De fenda nt’s
extensive criminal history, including the series of thefts spanning four (4) months
and several counties in 1995 to support his drug habit. While Defendant has
attempted to overcome his addiction to Dilua did, these mo st recent crimes are
reminiscent of his past behavior. In 1 983, the Defen dant wa s addicte d to
Diluad id and committed several crimes in order to support his drug h abit,
including forgery, po ssessio n of burg lary tools, co ncealing stolen pro perty and
second degree burglary. F urtherm ore, De fendan t had over twenty (20)
convic tions for writing w orthles s che cks. D efend ant ad mitted during his
testimony at the sentencing hearing that he used drugs during his probation for
the 198 3 offense s.
By his own admission, Defendant has a recurrin g drug p roblem . The trial
court considered this problem in finding that he was unsuitable for the Com munity
Corre ctions program. Defendant’s potential for rehabilitation is obviously lacking.
And while Defendant may have expressed some remorse for his conduct at the
sentencing hearing, he stated that he was not being prosecuted for many
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additional thefts which he committed. W hile the D efenda nt would have us to
compa re his suitability for Community Corrections as akin to the determinations
in Cummings and Millsaps, the Defendant in the case sub judice has committed
many more crimes than the defendant in Cummings and has a n extensive
criminal record unlike the defendant in Millsaps.
The trial cou rt was w ithin its discretion in finding Defendant unsuitable for
Commun ity Corrections, and we affirm the judgments of the trial courts.
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THOMAS T. W OODALL, Judge
CONCUR:
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DAVID H. WELLES , Judge
___________________________________
DAVID G. HAYES, Judge
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