State v. Julia Jenkins ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE June 8, 1999
Cecil Crowson, Jr.
DECEMB ER SESSION, 1998 Appellate C ourt
Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CC-00557
)
Appellee, )
)
) ANDERSON COUNTY
VS. )
) HON. JAMES B. SCOTT
JULIA JENKINS, ) JUDGE
)
Appe llant. ) (Direct Appe al - Aggravated Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE HUNT JOHN KNOX WALKUP
139 North Main Street Attorney General and Reporter
Clinton, TN 37716
CLINTON J. MORGAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
JAMES N. RAMSEY
District Attorney General
JAN HICKS
Assistant District Attorney
Room 127, Courthouse
Clinton, TN 37716
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On September 17, 1997, Appellant Julia Jenkins pled guilty to one count
of aggravated assault. After a sentencing hearing on November 14, 1997, the
trial court sen tenced Appella nt as a R ange I sta ndard o ffender to three years of
imprison ment. Appellant challenges the trial court’s denial of probation. After a
review of th e record , we affirm th e judgm ent of the tria l court.
FACTS
On May 28, 1996, Appellant and Berl Freels spent approximately four
hours drinking at Lucky’s Lounge in Oak Ridge, Tennessee. Appellant and
Freels th en wen t to a store, purcha sed a tw elve-pac k of beer , and then went to
Freels’ residence. At some point, Appellant and Freels began arguing, and
Appellant subsequently shot Freels in the head with a .32 ca liber pis tol.
Appellant initially cla imed that Fre els ha d sho t hims elf, but s he su bseq uently
gave a statement in which she claimed that she accidentally shot Freels after she
picked up the gun from the table where Freels had placed it. At the sentencing
hearing, Appellant testified that sh e sho t Freels after he asked her to. Appellant
testified that the first time she fired the gun, it d id not g o off, bu t when Freels kept
beggin g her to sh oot him , she fired th e gun a gain an d shot him .
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ANALY SIS
Appellant contends that the trial court erred when it failed to grant
probation in this case.1 We disagree.
Under Tennessee law, a d efend ant is e ligible for probation if the sentence
impo sed is eight years or less and further, the trial court is required to consider
probation as a sentencing alternative for eligible defendants. Tenn. Code Ann.
§ 40-35-303(a)–(b) (1997). However, even though probation must be
autom atically conside red, “the d efenda nt is not automatically entitled to probation
as a matt er of law.” Tenn. Code Ann. § 40-35-303(b) (1997), Sentencing
Commission Com ments ; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.
App. 1991). Indeed, a defendant seeking full probation bears the burden on
appeal of showing that the sentence actually imposed is imp roper and th at full
probation will be in the best interest of both the defendant and the pub lic. State
v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995). When determining
suitability for probation, the se ntencing cou rt considers the following factors: (1)
the nature and circumstances of the criminal conduct involved; (2) the
defen dant’s potential or lack of potential for rehabilitation, including the risk tha t,
during the period of probation, the defendant will commit another crime; (3)
whether a senten ce of full prob ation wo uld und uly depre ciate the seriousness of
the offense; and (4) whether a sentence other than full probation would provide
an effective deterrent to othe rs likely to com mit similar crimes. Tenn. Code Ann.
1
We note that our review on appeal is limited to the narrow question presented by Appellant of
whether the trial court erred when it failed to grant probation. Accordingly, this review does not address
the appropriateness of other sentencing alternatives.
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§§ 40-35-210 (b)(4), -103(5), -1 03(1)(B ) (1997 & Supp. 1 998); State v. Baker, 966
S.W .2d 429 , 434 (T enn. C rim. App . 1997); Bingham, 910 S.W.2d at 456.
Although the trial court did not expressly list the factors on which it based
its decision to deny probation, it is apparent from the record that the court based
its decision on the nature of the offense and on a conclusion that pro bation would
deprec iate the seriousness of the offense. The nature and characteristics of the
criminal condu ct involved are factors that are logically related to the issue of
depreciating the seriousness of the offense. See Hartley, 818 S.W.2d at 374–75.
When these factors se rve as the only basis for denying probation, “the
circumstances of the offe nse a s com mitted mus t be es pecia lly violent, horrifying,
shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated
degree and the natu re of the offense m ust outweigh a ll factors favoring a
sentence other than con finement.” Bingham, 910 S.W.2d at 454 (citation
omitted). The record indicates that after a verb al confrontation, Appellant
intentio nally pointed a gun at Freels’ head and pulled the trigger. When the gun
did not fire th e first tim e, App ellant in tention ally pulled the trigger again and shot
Free ls in the head. As a result, Freels is blind in his right eye, deaf in his right
ear, paralyzed on the right side of his fa ce, an d has bullet fra gme nts in his sku ll
which cannot be removed. Thus, we find the circumstances of this offense to be
sufficiently rep rehens ible and o ffensive to ju stify a denia l of probatio n.
In addition, we conclude that Appellant’s potential for rehabilitation also
weighs against a sentence of probation. Indeed, Appellant’s prior criminal record
consists of two public intoxication convictions, two reckless driving convictions,
and one co nviction for d riving und er the influen ce of a n intoxic ant. T his
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continuing disrespec t for the law indicates that Appellant has poor potential for
rehabilitation. Furthe r, the re cord in dicate s that A ppella nt initially denied a ll
respon sibility for the shooting by claiming that Freels had shot himself. Appellant
then admitted that she had shot Freels, bu t denied re spons ibility by claiming that
the gun had fired accidentally. Even at the sentencing hearing when she
admitted to pulling the trigger two times be fore she shot Fre els, Appe llant
continued to maintain that the shooting was an accident that occurred only
because Freels asked her to shoot him. This Court has previously stated that
failure to accept responsibility for one’s criminal conduct reflects poorly on
rehabilitative poten tial. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App.
1996).
Based on the circum stances of this offen se, a conclus ion that probation
would depreciate the seriousness of the offense, and Appellant’s poor potential
for reh abilitatio n, we h old that the trial co urt did not a buse its discre tion wh en it
denied probation in this case. Accordingly, the judgment of the trial court is
AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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