State v. Schindler ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
AUGUST 1997 SESSION
FILED
September 9, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9610-CR-00376
Appellee, )
) Knox County
V. )
) Honorable Mary Beth Leibowitz, Judge
)
KRISTINA SCHINDLER, ) (Aggravated Burglary)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Gregory D. Smith Charles W. Burson
Attorney at Law Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN 37040 Peter M. Coughlan
Assistant Attorney General
At Trial: Criminal Justice Division
Laura Hendricks 450 James Robertson Parkway
Attorney at Law Nashville, TN 37243-0493
810 Henley Street
Knoxville, TN 37902 Randall E. Nichols
District Attorney General
Steven C. Garrett
Assistant District Attorney General
440 Main Avenue
City-County Building
Knoxville, TN 37901
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Kristina Schindler, was convicted by a jury of aggravated
burglary. At her sentencing hearing she requested post-trial diversion. The trial
judge denied her request and imposed a three-year suspended sentence and
five years probation. She appeals the trial court's denial of her request for post-
trial diversion and the manner of service of her sentence. Upon review, we
affirm.
The appellant contends that the trial court erred in not granting her post-
trial diversion. She argues that the trial court erroneously considered the fact
that she had expunged two out-of-state convictions from her record by
successfully completing diversion programs on both charges. We disagree.
In determining whether a defendant is qualified for judicial diversion the
trial court should consider: (1) the accused's amenability to correction, (2) the
circumstances of the offense, (3) the accused's criminal record, (4) the
accused’s social history, (5) the accused's physical and mental health, and (5)
the deterrence value to the accused as well as others. State v. Bonestel, 871
S.W.2d 163, 168 (Tenn. Crim. App. 1993); State v. Hammersley, 650 S.W.2d
352, 355 (Tenn. 1983). The trial court's judgment will not be disturbed absent a
showing of abuse of discretion. In order to establish an abuse of discretion, this
Court must determine that no substantial evidence exists to support the trial
court's findings. State v. Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App.
1992).
The Tennessee Sentencing Reform Act of 1989 mandates that trial courts
consider the past criminal behavior of defendants when making sentencing
determinations. Tenn. Code Ann. § 40-35-210 (1990). In the instant case, the
trial court was correct in its consideration of the appellant's two past diversion
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experiences. This information is very indicative of the lack of deterrence
diversion has on the appellant and to her lack of amenability to correction.
Furthermore, during her burglary attempt, the appellant severely beat the victim
with an ax handle. These factors support the trial court's decision. Diversion
was inappropriate for the appellant. This issue is without merit.
In her next issue the appellant contends that the trial court erroneously
imposed five years probation on her three-year suspended sentence. She
argues that the length of probation cannot legally exceed the term of her
sentence. We disagree.
It is well settled that a trial court may fix the length of probation up to the
statutory maximum for the class of the offense. Tenn. Code Ann. § 40-35-303(1990) Sentencing Commission Comments. See State v. Brian Necessary, No.
02C01-9307-CR-00131 (Tenn. Crim. App., at Jackson, Aug. 10, 1994). The
sentencing commission intended to give trial courts great latitude in fixing the
length of probation to encourage its use as a sentencing alternative. In the
instant case, the appellant was convicted of a Class C felony as a Range I
standard offender. Therefore, the sentence range is three to six years. The
appellant received five years on probation. Her sentence is, therefore,
appropriate. This issue is without merit.
After considering the appellant's issues, we find no error of law mandating
reversal. Accordingly, we affirm the judgment of the trial court.
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__________________________
PAUL G. SUMMERS, Judge
CONCUR:
___________________________
GARY R. WADE, Judge
___________________________
WILLIAM M. BARKER, Judge
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